Preliminary Hearings

Excerpted from: Preliminary Hearings, 40 Georgetown Law Journal Annual Review of Criminal Procedure 243 (2011) (57 footnotes Omitted)

A criminal defendant may encounter at least three types of pretrial proceedings: (1) a Gerstein hearing; (2) an initial appearance hearing; and (3) a preliminary hearing. These three hearings perform separate functions and are compelled by different mandates, although they may be combined. The purpose of a Gerstein hearing is to review the police determination that probable cause existed to make the arrest. Additionally, the Federal Rules of Criminal Procedure require both an initial appearance, held to advise an arrestee of his or her rights and the charges against him or her, and a preliminary hearing, held to determine whether probable cause exists to bind the arrestee for trial.

Gerstein Hearings. In Gerstein v. Pugh, the Supreme Court held that “the Fourth Amendment requires a judicial determination of probable cause as a prerequisite to extended restraint of liberty following arrest.” The accused is entitled to a Gerstein hearing prior to being detained without bond or otherwise experiencing a significant restraint of liberty unless the arrest is supported by a warrant or grand jury indictment. Only “a brief period of detention to take the administrative steps incident to arrest” may precede the hearing. In County of Riverside v. McLaughlin, the Supreme Court held that jurisdictions with procedures providing a probable cause determination within forty-eight hours of arrest are generally immune from systemic challenges of undue delay. However, an individual may still argue that the probable cause determination in a particular case was “delayed unreasonably,” regardless of whether this forty-eight hour guideline was satisfied. If an individual is detained for more than forty-eight hours without a Gerstein hearing, the delay is presumed to be excessive and may be justified only by “a bona fide emergency or other extraordinary circumstance.”

The sole issue in a Gerstein hearing is whether there is probable cause to detain the arrestee pending further proceedings, and the standard is whether a reasonable person would believe that the suspect committed an offense. A judicial officer may conduct the Gerstein hearing in a nonadversarial fashion, without counsel or the suspect present. Hearsay and written testimony are admissible. Although a suspect can challenge the existence of probable cause for arrest and detention prior to trial, a subsequent conviction will not be vacated solely on the ground that the defendant was improperly detained.

Initial Appearances. Rule 5 of the Federal Rules of Criminal Procedure requires the arresting officer to bring the accused before a federal magistrate judge without unnecessary delay. Rule 5(d) establishes the procedures for an initial appearance in a felony case. The magistrate must inform the accused of the charge, the right to remain silent, the right to request or retain an attorney, the possibility that any statement made may be used against him or her, the right to a preliminary hearing, and the general circumstances under which pretrial release may be secured. Finally, the magistrate must allow the accused reasonable time to consult with an attorney and must set or deny bail. A defendant may be asked to plead only in an arraignment. The initial appearance may be conducted via video teleconferencing with the consent of the defendant.

An unnecessary delay between arrest and the initial appearance may violate due process. What constitutes “unnecessary delay” is determined in light of all the facts and circumstances. Courts will consider the amount of time that passed, as well as how and why the delay occurred.

Confessions obtained from defendants during periods of unnecessary delay prior to the initial appearance are generally inadmissible at trial. However, a voluntary confession that occurs within six hours of an arrest is admissible if the delay of the initial appearance would be the sole reason for suppression. In United States v. Alvarez-Sanchez, the Supreme Court held that delay is usually measured from the time the suspect is arrested on federal charges until his or her initial appearance. In the event that a defendant held in state custody demonstrates that an arrangement between state and federal authorities allowed federal officials to obtain information from the defendant before an initial appearance, delay may be measured from the commencement of state custody.

Preliminary Hearings. Rule 5.1(a) of the Federal Rules of Criminal Procedure entitles a defendant charged with a non-petty offense to a public preliminary hearing before a federal magistrate. This right is guaranteed only in federal court and allows a judicial officer to determine whether probable cause exists to believe that the defendant committed the offense. The hearing must occur “within a reasonable time, but no later than 14 days after the initial appearance if the defendant is in custody and no later than 21 days if not in custody.” The preliminary hearing is required unless it is waived by the defendant or an indictment or information is filed before the hearing. In such cases, securing the indictment or information provides a determination of probable cause that renders the preliminary hearing unnecessary.

Unlike the Gerstein hearing and the initial appearance, the preliminary hearing is a formal, adversarial hearing at which the defendant is entitled to be represented by an attorney, to cross-examine witnesses, and to introduce evidence. The magistrate judge may restrict the scope of cross-examination to focus on the issue of probable cause. Moreover, the magistrate judge may base a finding of probable cause entirely on hearsay or unlawfully obtained evidence. Although the hearing is not designed to provide the defendant with discovery, some discovery may occur as a byproduct.

The magistrate judge will bind the defendant for trial upon finding probable cause to believe the defendant committed the offense. In the absence of probable cause, the magistrate judge will dismiss the complaint and discharge the defendant. Dismissal does not preclude subsequent prosecution for the same offense, and witness testimony at preliminary hearings may be admitted in a subsequent criminal trial. The magistrate judge must make available a record or summary of the proceeding after the preliminary hearing. Although defense counsel may obtain a transcript or recording of the proceeding, the unavailability of a transcript does not provide a basis for reversal of a conviction unless the defendant demonstrates a significant risk of prejudice.